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February 22, 2018

How the Internet Archive Infringed My Copyrights and Then (Kind Of) Blew Me Off

Posted by Victoria Strauss for Writer Beware

Last month, I wrote about the Internet Archive's Open Library project, which has been scanning donated print books, creating PDFs and EPUBs from the scans, and placing the scans and the digitized versions online for public borrowing--all without seeking permission from authors.

Although the IA describes these books as being "mostly from the 20th century" and "largely not available either physically or digitally", numerous books in the Open Library collection are recently published, in-copyright, and commercially available. SFWA is among several writers' groups that considers the Open Library project to be not library lending, but direct infringement of authors' copyrights.

On hearing about Open Library, I of course checked it out to see if any of my books were included. I found four, each in multiple formats: a scan of the print book, a PDF (the photographic scan rendered page by page), an EPUB (an OCR conversion full of errors--weird characters, garbled words, headers included in the text, and the like), and a DAISY (an encrypted format for the visually impaired that requires a special key to de-crypt). All of these books are currently "in print" and available for sale.

Here's how my books appeared on Open Library, with the blue "Borrow" buttons indicating their availability for borrowing.

Passion Blue has a yellow "Join Waitlist" button because I borrowed and downloaded it to Adobe Digital Editions, to see what the digitizations looked like and also to check whether the borrows expired after 14 days, as promised. (They did.)

One of the questions that has concerned SFWA and other writers' groups is how the IA responds to DMCA notices. So on January 1, I sent one for Passion Blue.

No response. On January 9, I sent another.

Still nothing. On January 25, I sent a third DMCA notice.


Well, this was annoying, especially since, in a January 24 post to the Internet Archive blog, IA founder Brewster Kahle promised "prompt action" on DMCA requests. But hey, maybe the IA folks were just swamped with takedown notices and were working through a big backlog. I resolved to be patient.

Then, on January 27, author Virginia Anderson alerted me to her blog post about her experience with Open Library and the IA. Like me, she'd found one of her books available, had sent DMCA notices, and had heard nothing back. Frustrated, she posted a comment on the IA blog, indicating that she'd be seeking legal advice if she didn't get a reply (the IA blog is moderated, and Ms. Anderson's comment never appeared publicly). Within 36 hours, the IA responded in email, and the digitized versions of her book were taken down.

Well, I thought, I can do that. So on January 28, I hopped on over to the IA blog and posted this comment:

I made a screenshot because I was pretty sure it wouldn't be let through, and I was right. However, within 24 hours I got an email identical to the one Virginia Anderson received, ostensibly in response to my third DMCA notice.

On checking Open Library, I found not just that Passion Blue was gone, but the other three books had been taken down as well. (The encrypted DAISY versions are still available, but I have no quarrel with that; many publishing contracts allow publishers to grant rights to non-profit organizations that serve the visually impaired, without compensation to the author).

So why do I feel like I've been blown off? After all, I got what I wanted: withdrawal from public lending of unauthorized scans and digitizations of my books. Shouldn't that be enough?

Well, no. Look, I get that people have different views of copyright. My interest in retaining tight control of my intellectual property conflicts with others' vision of universal libraries and unfettered access to information. I'm fine with that. There are laws that enable me to take action if I feel my rights have been infringed, and I have no problem using them.

What pisses me off is how unprofessionally the IA handled this (and Virginia Anderson's experience makes it clear that I'm not alone). Over the space of nearly a month, I sent three DMCA notices, none of which got a response; but when I left a snippy blog comment, the IA got back to me within 24 hours. Clearly the IA is not too busy to take quick action when it wants to. It also irks me that, when the IA did respond, it didn't acknowledge my DMCA notices (other than the subject line), or any obligation to act on them. Instead, it provided a paragraph of exposition about DAISY, informed me that there's "no other access available" to Passion Blue as if that had been the case all along, and finished with a plug for its philanthropic mission. Basically, "no issue here, move right along"--while tacitly acknowledging that there is an issue by hastily removing public access not just to Passion Blue but to the three books I didn't ask them to take down.

Really, it's almost childish. The IA does important work that's worth supporting. It may not agree with me and others that Open Library is an overreach--but in my opinion, the way it has dealt with me and with Virginia Anderson is not worthy of its mission.

Has anyone had a similar experience? Or gotten a more prompt and professional response? I'd be interested to know.


One question that often comes up when discussing this kind of infringement: Brick-and-mortar libraries lend out books for free. How is Open Library different? A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new, un-permissioned lending formats. That's exactly what the IA does; moreover, one of its additional lending formats is riddled with OCR errors that make it a chore to read. Apart from permission issues, this is not how I want my books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its Open Library project.


Nathaniel Hoffelder said...

I have heard privately from several authors who had similar experiences.

This group is doing its best to get on authors' last nerve.

Vonda N. McIntyre said...

I went looking for my own books (legit digital backlist at at IA and discovered that in order to get the information I needed, I had to agree to their T&C, which includes a promise not to sue them. I'm not willing to agree to this.

Any advice?

Thanks in advance,


Ray Radlein said...
This comment has been removed by the author.
Ray Radlein said...

Do their Terms and Conditions forbid anyone else from looking to see if your books are there and informing you of the results of that perusal? Similarly, would they forbid anyone else -- say, your publisher, or the SFWA -- from suing on your behalf if you looked on your own?

(I can't believe I actually made a "their/they're/there" error in the first version of this I posted. Would you believe that's the first one of those of mine that's ever made it past the "publish" button in my 30+ years on the internet? No, I wouldn't believe that either)

Vonda N. McIntyre said...

No idea. IANAL. I am, though, someone who actually reads T&C (or anyway I try to). Theirs distressed me. I would like to know what they've got of mine and where/how they produced the files.

One website used to post the same ratty scan of Dreamsnake over and over and over again despite my objections. (This was back in the day when it was semi-safe to look at pirated ebooks, which it really isn't anymore.)

I mean, the pirates couldn't even be bothered to spend $5 to get a legit, proofread, non-DRM copy.


(I hate it when those universal Internet typos creep into my fingers. I've made its/it's errors because I've seen them so often. I believe I've mostly caught them before they got out into the wild.)

Barbara Evers said...

If you look into the history of copyright laws, they were established so authors would continue to create. Very early in the history of printing, it became obvious that the work created took time and effort. Early printers and lawmakers realized creators of these items should be compensated, OR they might stop providing materials to be printed. It is not greedy at all to expect your work to be purchased instead of pirated. It’s a right protected by law. The music and movie industries fight this daily, and no one thinks they are being petty about it.

Inkling said...

J. R. R. Tolkien had similar problems with a U.S. publisher releasing an unauthorized edition of The Lord of the Rings back in the 1960s. His problem was compounded by odd quirks in U.S. copyright law at the time and blunders his authorized U.S. publisher had made. It was possible that, had he taken the bootlegger to court, he would have lost, putting him in still worse trouble.

Instead he did the 1960s equivalent of a blog post. When he replied to fan letters, he included a brief explanation of that infringement and asked his readers to stop buying from that publisher. That hit the bootlegger where it hurt, and they agreed to stop publishing his books and to pay money in lieu of the royalties he had not received. Years ago, I knew the Tolkien estate's lawyer, and he told me that it took until the 1990s for his literary estate to get its copyright status on sound enough ground that they could effectively defend it in court.

Internet Archive isn't a commercial publisher, but it does need public respect and donations. Authors who've been illegally copied should look for those pressure points and use them. IA may be sloppy about copyright, so look for ways that do motivate them.

--Michael W. Perry, author of Untangling Tolkien

Caroline Clemmons said...

Thank you for this heads up. Four of my titles are on the site and I have sent a take down notice. I did not get a message to comply to their T and C.

Lyn C said...

Thanks once more, Victoria. I've shared this on Twitter and FB.

Frank Parker said...

One other difference between IA and a bricks and mortar library is that, in Britain at least, authors receive an annual lending right payment based on the number of times their book has been borrowed from libraries across the UK. (A bit like KDPU or the other legit digital library services such as Scribd).

Victoria Strauss said...


As I read the T&C and the language about not suing, they apply to the _use_ of the site, such as downloading or uploading books and other material. I think you could argue that simply searching to see if your books are listed doesn't constitute use in that sense, even if you have to register to do it. Maybe that's stretching it--I don't know. I think Ray's suggestion of having someone do it for you could also be an option.

Being forced to choose between exercising your legal right to control your intellectual property, and preserving your right to sue by refraining from taking action, is really an unacceptable choice, but if that's the choice your have to make, I guess you have to decide which possibility makes you most uncomfortable. For me, it was not taking action, so I decided to disregard my misgivings about the T&C and go ahead.

Vonda N. McIntyre said...

Thanks, Victoria. Good advice as always. --V.

Dusk Peterson said...

"The encrypted DAISY versions are still available, but I have no quarrel with that; many publishing contracts allow publishers to grant rights to non-profit organizations that serve the visually impaired, without compensation to the author"

I'm glad you have no quarrel with that. :) I just wanted to add that it's been legal in the US since 1996 for authorized organizations that serve the visually impaired and other disabled people to supply copies of books to print-impaired readers, regardless as to whether a publishing contract authorizes it. See this page for the law:

What the contracts may be referring to are publishers donating e-books to such organizations, rather than the organizations having to scan printed books to create their own e-books - which, as you've noted, often results in OCR errors.

V.M. Sang said...

I think I need to head right on over and check my books.

V.M. Sang said...

Just checked. None of my books are there. Whew!

Papa Charles said...

"Well, no. Look, I get that people have different views of copyright. My interest in retaining tight control of my intellectual property conflicts with others' vision of universal libraries and unfettered access to information. I'm fine with that."

No, I don't care what different views people have. The law is the law, and these people who evidently are breaking the law habitually and without remorse need to be prosecuted.

Anonymous said...

To keep track of pirating of my work, I have set up google alerts for my name and book titles. I'm not sure whether it would alert me of pirated copies on IA, but I'd suggest all authors do this, at least.

thanks for the warning about IA.

Anonymous said...

Just visited the IA site. Using the search box at the top right of the main page, it looks to me like you can check to see if they have your books without signing up.

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